Braja Kishore Mohanty vs State Of Odisha & Others

Dixit Krishna Shripad, J

Petition prayer is as under:

“The petitioner therefore prays that your lordships may graciously be pleased to modify/quash the order dated 20.08.2022 under Annexure-8 and direct the Opp. parties to regularize the service of the petitioner w.e.f. 21.06.1996 with all consequential service and financial benefits including the arrear salary in compliance to order of this Hon’ble Court dated 09.02.2016 under Annexure-5, which has been upheld by division bench of this Hon’ble Court dated 06.12.2021 and Apex Court dated 17.05.2022 under Annexure-6&7 within a stipulated time.”

Essentially, petitioner seeks quashment of the order dated 20.08.2022, whereby his case has been treated as of fresh appointment to the post in question. Counsel for the petitioner submits that it was not a case of fresh appointment but was of regularization of service pursuant to order dated 09.02.2016 entered by a Co-ordinate Bench of this Court in W.P.(C) No.15725 of 2012. The Co-ordinate Judge had granted a period of three months for implementation. It was a definite direction for regularization, as distinguished from a direction for consideration of case for regularization. Counsel also submits that matter went in W.A. No.231 of 2016 by the OPs and the same was negatived by the Division Bench on 16.12.2021; lastly OPs’ SLP (C) No.4893 of 2022 also met the same fate at the hands of Apex Court of the country vide order dated 17.05.2022. That being the position, he seeks indulgence of this Court.

Learned Panel Counsel appearing for the OPs vehemently resists the petition contending that whatever be the arguable infirmity in the impugned order, interference of this Court is not warranted, since broadly justice has been done by granting appointment order to him. He also highlights the word “consider” employed by the Division Bench in its judgment dated 06.12.2021 and therefore, the impugned order accords with the spirit of said order. He also tells the Court that the post itself was not available and therefore, the question of regularization could not be treated in a normative way and therefore, fresh appointment has been issued to the petitioner. So contending, he seeks dismissal of the writ petition.

Having heard learned counsel for the parties and having perused the petition papers, this Court is inclined to grant interference in the matter as under and for the following reasons:

4.1. Services of petitioner were engaged as Choukidar/Watchman w.e.f. 28.09.1995 after ascertaining his qualification at the time of advertisement, which satisfied the requirement. When his services were not regularized, he had filed W.P.(C) No.15725 of 2012 which on contest came to be allowed by a Co-ordinate Bench of this Court vide order dated 09.02.2016. It is relevant to advert to the operative portion of the said order, which is as clear as Gangatic water:

“In that view of the matter, since the petitioner is continuing in his post and has completed more than 20 years of service and even though his appointment is irregular, he should be regularized in service in view of the judgment of the apex Court in Umadevi(supra), M.L.Keshari (supra) and Kapila Hingorani(supra) and judgment of this Court in Binan Kumar Mohanty & others (supra). Accordingly, the opposite party nos.2 and 3 are directed to regularize the service of the petitioner within a period of three months from the date of passing of this order.

With the aforesaid observation and direction the writ petition is allowed.”

Learned counsel for the petitioner is right in telling that it was not a case wherein the direction was for consideration for regularization, but the one where the OPs were mandamused to grant regularization within three months.

4.2. The matter was carried further by the OPs in W.A. No.231 of 2016 and the same came to be dismissed on 06.12.2021. OPs, being as relentless as can be, carried it further more in SLP(C) No.4893 of 2022, which too met to the same fate on 17.05.2022 at the hands of apex court of the country. It is only on 20.08.2022 that the impugned order has been issued, treating the petitioner as having been freshly appointed to the post in question. That means, his entire previous service is wiped out from the records, to deny him any benefits thereof. This is unjust, arbitrary & illegal, to say the least. The Apex Court in E.P. Royappa v. State of Tamilnadu, AIR 1974 SC 555 said that such an action is unsustainable in the teeth of Article 14 jurisprudence.

4.3. The vehement submission of learned Panel Counsel appearing for the OPs that the Division Bench order in their W.A. No.231 of 2016 altered the mandate of learned Single Judge, inasmuch as it employed the word “consider”, is bit difficult to countenance. While construing the Court orders, commonsense cannot be kept in cold storage. A single word cannot change the spirit & tenor of judgments. After all, a word is nothing but skin of a living thought and it has no fixed contours of meaning. The meaning of a word depends upon the company of other words accompanying it vide “noscitur a sociis”. Therefore, the contention does not impress the Court.

4.4. The vehement contention of learned Panel Counsel that, they have issued the impugned order soon after the legal battle concluded, victory having eluded them, is also not fully correct. The Writ Petition was decided on 09.02.2016 in favour of the petitioner; Writ Appeal was dismissed vide order dated 06.12.2021 and SLP(C) No.4893 of 2022 was rejected on 17.05.2022. Learned Single Judge who decided the Writ Petition had prescribed only a period of three months. When the highest Court of the country rejected the SLP, the OPs took more than three months to give effect to the order of learned Single Judge. No explanation is offered whatsoever as to brooking of delay, which gives an impression of showing scant respect to the Court orders. That would not serve well to the good governance, to say the least. Even the contention advanced before the Court, not only border the doctrine of res judicata but show unconscionability.

In my considered view, this is a fit case where exemplary costs need to be levied on the OPs for taking the Court orders lightly.

In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing that part of the impugned order dated 20.08.2022 which treats petitioner as the fresh appointee. The said order should be construed & read as being effective from the date the writ petition was decided on 09.02.2016. OPs to give effect to this order by rectifying the entries in the Service Records and all other records as well, and further granting all consequential benefits to the petitioner treating him as having been regularized in service w.e.f. 09.02.2016 itself.

The OP No.3 shall pay to the petitioner a cost of Rs.50,000/-(rupees fifty thousand) only within a period of 30 days and this amount may be recovered from the erring officials, including the incumbents of the office of Vice-Chairman during whose tenures this unhappy episode happened. This amount shall not be charged on the Public Fund. Further, delay in payment shall carry a levy of Rs.500/- (rupees five hundred) only per day, in addition.

Web copy of the judgment to be acted upon by all concerned.